The United States Supreme Court has gone rogue. Evidence for that proposition is abundant.
Progressives rail against what is going on in our nation’s highest court. They are right to do so.
But they have yet to develop a plan for reining in the Court and for protecting its institutional integrity. While it is clear that the Court’s attack on abortion rights has mobilized voters, progressives need to use the power at their disposal to deal with a Court in which Justices seem impervious to reason and intent on acting in an imperious and imperial manner.
The evidence that the Court has gone rogue might begin with its hypocritical and inconsistent embrace of originalism, what Ruth Marcus calls an “originalism of convenience.” The conservative Justices on the Court wave the flag of originalism when it suits them and helps them achieve their ideological goals. They abandon it when it gets in the way.
One might add to the list the Court’s sorry performance during oral argument in the presidential immunity case and its trashing of precedent in cases like Dobbs v. Jackson Women’s Health Org. Whatever one’s view about the constitutional status of reproductive rights for women, reading what Justice Samuel Alito’s majority opinion in Dobbs said about Roe v. Wade and Planned Parenthood v. Casey was simply startling.
Research I recently completed shows that Alito’s rhetoric of overruling was genuinely unprecedented in its harshness and disrespect for earlier Court decisions.
And speaking of Justice Alito, he, along with Justice Clarence Thomas, seems to be leading the way in flouting the norms of judicial impartiality and revealing their deeply partisan affiliations and attachments. Alito thinks nothing of appearing before conservative groups and laying out his vision for remaking the constitutional order.
We learned on May 16 of another instance of Alito gone rogue when the New York Times revealed that he had flown the American flag upside down in an expression of solidarity with insurrectionists and election deniers in the wake of the January 6 attack on the Capitol. What hasn’t gained much attention is the fact that what he did was prohibited by law.
Section 8 of U.S. Code Title IV states that “No disrespect should be shown to the flag of the United States of America.” It lists several ways in which someone could show disrespect for the flag.
The first thing the Code prohibits is that “The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.”
But law be darned. After all, Alito has life tenure and a supportive ultra-conservative constituency.
He has good company in Justice Thomas, who seems to have no real concern about conflicts of interest or about the appearance of such conflicts. As journalist Ilana Novick writes, “Months of headlines revealed over 20 years of Thomas accepting and failing to disclose luxury travel and lavish gifts from rightwing billionaires with business before the Court.”
Thomas’s actions, Novick says, “undermine our democracy and trust in the Court.”
Last September, the Gallup polling organization documented that decline in trust. It reported the results of a survey that showed that “views of Supreme Court remained near record lows.” Only 41% of the respondents approved of the way the Court is handling its job.
In addition, less than half of Americans say they have “a great deal” or “a fair amount” of trust and confidence in the judicial branch of the federal government headed by the Supreme Court.
Gallup noted that “the court’s current 6-3 conservative majority, which includes three Trump appointees, has drawn the ire of … [many] Americans with a number of controversial decisions, including overturning Roe v. Wade, expanding gun owners’ rights to carry firearms in public, allowing business owners to refuse to work with lesbian and gay customers, striking down President Joe Biden’s student loan forgiveness plan, and constraining Biden’s power to combat climate change.”
It argued that “concerns about Supreme Court justices’ acceptance of gifts and lavish trips, particularly among two conservative justices, may subdue the public’s approval of and trust in the nation’s highest court.” Thank you, Justices Alito and Thomas.
In addition, research by the University of Pennsylvania’s Annenberg Center for Public Policy found that “the court’s ‘special status has evaporated’ and that the court’s dramatic shift to the right, capped by the 2022 ruling in Dobbs v. Jackson Women’s Health, has upended that favored relationship and polarized the public’s view of the court along partisan lines for the first time in decades.”
Progressives, like Rhode Island’s Democratic Senator Sheldon Whitehouse, have done valuable work trying to turn up the heat on the Supreme Court. Over the last several months Whitehouse has delivered a series of speeches on what he calls “The Scheme.”
In these speeches, delivered to an almost empty Senate chamber, Whitehouse has laid out the carefully orchestrated plan by right-wing donor interests to capture the United States Supreme Court and cement its alliance with them. In February, Whitehouse published an op-ed in which he connected the Court’s tolerance of the unethical behavior of Justices Alito and Thomas with cases in which the Court itself has undermined the ability of prosecutors to bring public corruption cases.
His website reminds readers that Whitehouse “is working to pass the Supreme Court Ethics, Recusal, and Transparency Act, which was voted out of the Senate Judiciary Committee in 2023. The bill would require Supreme Court justices to adopt a code of conduct, create a mechanism to investigate and address alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, and require justices to explain their recusal decisions to the public. The Senator has also led legislation to create term limits at the Court.”
The Ethics, Recusal and Transparency Act has a long list of cosponsors, all Democrats. It has little chance of surviving a Senate filibuster if it is brought to the floor.
Whitehouse’s ongoing efforts follow the work of President Biden’s Presidential Commission on the Supreme Court which released a 288-page report. It was carefully researched and thoroughly footnoted, canvassing all sides in the ongoing debate about what to do about the problems now plaguing the Court.
But, as law professor Sanford Levinson predicted when it was released, the commission report is “so measured in tone that it would make an excellent basis for classroom discussion, which is a mixed compliment. Its obvious concern with being relatively impartial means that it is unlikely to generate any genuine political movement.” Levinson was right.
On May 15, a group of progressives in the House of Representatives led by Georgia Representative Hank Johnson and advocates for Supreme Court reform, including representatives from Demand Justice and Citizens for Responsibility and Ethics in Washington announced the creation of a new task force “to advance legislation addressing what they have argued is political activism and ethical malfeasance on the Supreme Court.”
Johnson criticized the Court for “upset[ting] the delicate system of checks and balances on which our democracy once rested … [and] usurping both legislative and executive authority with activist decisions that disregard established precedent in order to achieve political results.”
Maryland Representative Jamie Raskin promised that the task force would “take a flashlight to the way our jurisprudence has been completely warped and distorted” by conservative political forces. “We’re going to fight to restore the Supreme Court’s integrity,” said Raskin, “and fight to recapture public confidence in the Supreme Court—but right now, it’s a serious threat to the continuing work of constitutional democracy.”
I think progressives will need more than a flashlight if they are going to succeed in the fight. They’ll need more than speeches in Congress, commissions, and task forces.
It is time for progressives to take the gloves off and use what power they have while they hold a majority in the Senate.
As the New York Times’s Jesse Wegman argues, “We are faced with flatly unacceptable behavior from the most powerful judges in the land. If nothing else, Congress has the power to … name and shame the wrongdoers. This would be a truth-seeking mission as well as a public service, showing the American people just how corrupt some justices are.”
Wegman urges Democratic-controlled committees to “hold hearings and subpoena witnesses to answer questions before the nation. They can subpoena Justice Alito himself. If he declines to show, subpoena his wife. He implicated her, after all, and she certainly has no separation-of-powers claim. Then subpoena Chief Justice Roberts, who declined to testify last year when he was asked politely. If he still doesn’t show up, Congress should remember it has the power of the purse and can reduce the court’s nonsecurity budget.”
Using the power of the purse and defunding the Court might be the only way to get the Justices’ attention and stop their rogue behavior. The Constitution provides a tool for progressives to prod the Court and to stop Justices from thumbing their noses at the rule of law that they are supposed to uphold and protect.